[This is an AHRC Article.]
“Forceful sex on menopausal woman not rape-Delhi High Court” read a news item (title changed now though the URL remains the same) on one media group website. “Delhi High Court Says ‘Forceful Sex’ Wasn’t Rape”, cried another news outlet. Together, the media coverage on the case has opened the floodgates for the ever ready to get outraged personalities on social media.
It is just that Delhi High Court has not said anything even remotely close to what the media has reported. What is more, most of those seething with anger appear not to have read thejudgment, easily accessible on the High Court website.
All that the Delhi High Court has stated, while upturning a lower court’s decision in the alleged rape and murder case, is that the evidence does not prove “beyond reasonable doubt that the appellant committed sexual intercourse with the deceased contrary to her wishes or her consent.” The uninformed outrage both on social and traditional media has not even touch this most crucial part.
No one has asked whose job it is to prove guilt beyond reasonable doubt?
It is certainly not that of the Judiciary, is it? Faced with such a situation, Indian jurisprudence, or any sane jurisprudence for that reason, cannot convict without guilt being proven beyond reasonable doubt.
No one has cared to ask the prosecution and investigation why there was no evidence – as it can be inferred by a thorough reading of the judgment – other than an autopsy report and the exhibits collected from the incident site.
No one amongst the outraged population has asked whether the investigators found a motive behind the alleged murder. The fact that the autopsy found the death to have been caused by internal choking, with the accused having no intent or even awareness of such an eventuality, too was ignored. That motive is often the most decisive factor in sentencing in virtually all jurisprudence appears to be too much detail for the outraged to handle.
The only thing scrutinised in detail is the use of the word “menopause”.
The section of the judgment carrying the word reads as follows:
“As regards the offence punishable under Section 376 IPC the deceased was aged around 65-70 years, thus beyond the age of menopause. We find force in the contention of the learned counsel for the appellant that even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased. From the MLC of Achey Lal and the post-mortem of the deceased it is evident that both Achey Lal and deceased had consumed alcohol. The forceful penetration is evident from the injuries on the vaginal orifices. However, besides the injuries on the vagina there is no other injury mark on the body of the deceased or on the appellant to show that there was any protest by the deceased. Hence we are of the opinion that it has not been proved beyond reasonable doubt that the appellant committed sexual intercourse with the deceased contrary to her wishes or her consent. Consequently the appellant is also acquitted of the charges under Section 376 IPC. The impugned judgment of conviction and order on sentence are set aside.”
It is true that the bench has not explained the use of the term, menopause. It is also true that the bench could have avoided the term altogether. But, it is also clear from the judgment itself that the bench has not stated what many news stories have implied. The media has picked on the term, coupled it with a play of words between “forceful” and “forcible” and cobbled together a headline tacky enough to catch eyeballs, for which media groups battle fiercely nowadays. This is true in most cases – those that stir public conscience and those that meet with public apathy. Unfortunately, while the bulk of the bogey of hurt sentiments and outraged hearts come from right-wingers, civil society also keeps falling prey to the game.
Going back to the judgement, is acquitting the accused for want of evidence wrong? Will justice be better served by punishing people even if there is no evidence against them? To put it differently, weren’t the same people so outraged, rightfully in that case, with the death sentence meted out to Afzal Guru purely on the basis of circumstantial evidence which did not prove the guilt beyond reasonable doubt? The judges cannot convict a person for satisfying ‘public conscience’ be it in Afzal Guru’s case or this one.
It is time, perhaps, to realize that such outrages can stir people, but justice is done in courts on the basis of evidence, not on the basis of public opinion. And, this is where our police fails more often than not. One may recall the oft-quoted Sessions Court judgment in the Priyadarshini Mattoo murder case, where the judge observed that he was certain that the accused was “the man who committed the crime," but was forced to acquit the accused for want of evidence, lashing out at the Central Bureau of Investigation for its shoddy investigation. The judgment, in fact, went to the extent of pointing out how the personnel of Delhi Police helped the culprits instead of bringing justice to the victim’s family. One may also recall how justice was first denied and then achieved in the Jessica Lal murder case. It was because of investigation that justice was served.
Sadly, reforming the criminal justice system does not seem to be a priority for civil society. This is despite the criminal justice system often being the point of first contact between the citizenry and the state; this is despite the system being the first point of denial of justice for citizens, especially the poor and the marginalised ones. Think of the shady role the police has often been found to play, even in sensational cases under media gaze, and one can presume the fate of the voiceless masses caught in the system. What we have is a colonial police, often turning into criminals – once termed “goondas in uniforms” by Justice Anand Narain Mulla – and not a professional force meant for enforcing the law.
This fact remains the biggest impediment to justice in India and will remain so till radical reforms are made in the system. The reforms will not come via such outrages, genuine or uninformed, but from a push from within. Until then, one can get justice for one Jessica Lal or Priyadarshini Matoo but not for the majority.
Take the recent case of brutal murder of a Dalit family, husband, wife, and son, in Ahmednagar, for example. With police inaction and no arrests even a fortnight after the murders, Dilip Jadhav, the brother of husband, has threatened to immolate himself in a desperate bid to get justice.
It is time for the civil society to realise that desperations and outrages cannot guarantee justice. Rather, the presence of such outrage and anger is a testament in itself that the system is rotten and needs to get changed.